August 22, 2019

Archives for December 31, 2013

Happy New Year from CBA-CLE

As we look back on 2013 and look forward to 2014, we would like to take a moment to thank you, our loyal readers and customers. We are grateful for you and look forward to another terrific year in 2014. Happy New Year!


Judicial Nominating Commission Appointments Announced

On Friday, December 27, 2013, Governor Hickenlooper announced appointments to 14 of Colorado’s judicial nominating commissions, including the Supreme Court Nominating Commission.

The judicial nominating commissions are responsible for interviewing applicants for judicial vacancies and selecting three of the applicants for appointment to the judiciary. The governor then has 15 days in which to appoint one of the three nominees to the bench. If the governor fails to appoint a nominee within this time, the Chief Justice of the Colorado Supreme Court may select a nominee.

Each judicial district has a nominating commission comprised of seven citizen members who must reside in the judicial district. No more than four members may have the same political party affiliation, and at least four members must not be admitted to practice law in Colorado. Additionally, there is a Supreme Court Nominating Commission, responsible for nominating appointees for the Colorado Court of Appeals and Colorado Supreme Court. The Supreme Court Nominating Commission comprises one attorney and one non-attorney member from each of Colorado’s seven judicial congressional districts, with one additional non-attorney member.

The appointments are as follows:

  • First Judicial District Nominating Commission – Thomas Overton of Golden to serve as a attorney and a Democrat from Jefferson County.
  • Second Judicial District Nominating Commission – Christina Habas of Denver to serve as an attorney and a Democrat from Denver County.
  • Fourth Judicial District Nominating Commission – Larry Gaddis of Colorado Springs to serve as an attorney and a Democrat from El Paso County.
  • Ninth Judicial District Nominating Commission – Andrea Bryan of Carbondale to serve as an unaffiliated attorney from Garfield County.
  • Tenth Judicial District Nominating Commission – James Whitmire of Pueblo to serve as an attorney and a Republican from Pueblo County.
  • Twelfth Judicial District Nominating Commission – Paul Motz of Alamosa to serve as an attorney and a Democrat from Alamosa County.
  • Thirteenth Judicial District Nominating Commission – Edward Zorn of Ft. Morgan to serve as an attorney and a Republican from Morgan County.
  • Seventeenth Judicial District Nominating Commission – Daniel Carr of Westminster to serve as an unaffiliated attorney from Adams County; Patricia Jarzobski of Westminster to serve as an attorney and a Democrat from Adams County.
  • Eighteenth Judicial District Nominating Commission – Candace Figa of Aurora to serve as an attorney and a Republican from Arapahoe County.
  • Nineteenth Judicial District Nominating Commission – William Crossier of Greeley to serve as an attorney and a Republican from Weld County.
  • Twenty-First Judicial District Nominating Commission – Scott Burrill of Grand Junction to serve as an unaffiliated attorney from Mesa County; Amy Hand of Grand Junction to serve as an attorney and a Republican from Mesa County.
  • Twenty-Second Judicial District Nominating Commission – Sean Murray of Mancos to serve as an attorney and a Democrat from Montezuma County.
  • Supreme Court Nominating Commission – Kathleen Lord of Denver to serve as an attorney from the First Congressional District; Michael Burg of Greenwood Village to serve as an attorney and a Democrat from the Sixth Congressional District.

Tenth Circuit: Sentence Enhancement Affirmed in Bomb Threat Case

The Tenth Circuit Court of Appeals published its opinion in United States v. Anwar on Monday, December 23, 2013.

Daud Anwar was an engineering student at New Mexico State University (“NMSU”). Seeking to avoid sitting for an important test, Mr. Anwar sent two emails and made four phone calls in which he falsely threatened to detonate explosives at various NMSU campus locations. Anwar pled guilty to making false threats to destroy buildings in violation of 18 U.S.C. § 844(e). The district court sentenced him to 24 months in prison and three years of supervised release.

Anwar appealed only the four-level sentence enhancement he received under the United States Sentencing Guidelines (“U.S.S.G” or “Guidelines”) for causing a “substantial disruption” to public “functions or services.” U.S.S.G. § 2A6.1(b)(4)(A). Applying the “substantial disruption” provision was a matter of first impression for the Tenth Circuit. The court decided the correct analysis was to consider objectively quantifiable effects, including the scope and time of the disruption at issue.

The uncontested facts in this case were sufficient to show substantial disruption. Anwar’s false threat to detonate a bomb shut down an entire building, caused the evacuation of 240 people and the interruption of 14 classes. The threat diverted various NMSU employees and police officers from their regular duties. Six police officers and six NMSU firefighters swept the building for explosives before anyone could reenter the building. Campus authorities spent the next two days investigating before identifying Anwar as the suspect.

The court affirmed the sentence enhancement.

Tenth Circuit: Court Rejects “Continuing Wrong” Doctrine in Copyright Infringement Claims

The Tenth Circuit Court of Appeals published its opinion in Diversey v. Schmidly on Monday, December 23, 2013.

Andrew Diversey sued several administrators and members of the Board of Regents of the University of New Mexico (UNM) for infringing his copyright to an unpublished dissertation. Diversey complained about alleged failings of his dissertation committee to departmental and university administrators, including Charles Fleddermann, UNM’s Dean of Graduate Studies. As Diversey continued to attempt to convince UNM officials to correct the deficiencies in the dissertation process, he provided a copy of the draft dissertation to Doug Weintraub, who volunteered to proofread it. Before Weintraub could do so, Fleddermann allegedly confiscated the draft.

On February 7, 2008, UNM Deputy Provost Richard Holder wrote Diversey to advise him the dissertation had been deposited in the Zimmerman Library at UNM. Diversey continued complaining to various UNM officials. On June 16, 2009, Diversey discovered two copies of his dissertation: one in UNM’s Zimmerman Library and another in the collection of the Zimmerman Library’s Center for Southwest Research. These copies were available to the general public. Diversey wrote each of the appellees, including the Dean of University Libraries, citing his copyright and requesting the return of all copies of his dissertation. On October 5, 2009, UNM’s counsel sent Diversey a letter refusing Diversey’s request.

On June 15, 2012, Diversey filed a complaint for copyright infringement. The district court dismissed Diversey’s complaint as untimely under Fed. R. Civ. P. 12(b)(6), concluding the claim accrued in February 2008, when Diversey was notified of his dissertation’s deposit in the Zimmerman Library. A claim for copyright infringement must be brought within three years after the claim accrues.

Diversey argued that under a “continuing wrong” exception to the statutory limitation, his claim was not time barred. The Tenth Circuit rejected as unnecessary the “continuing wrong” doctrine in the copyright infringement context. It adopted the majority view, which holds that a related act of infringement during the limitation period does not allow recovery for acts that occurred more than three years before a complaint was filed.

Diversey, however, argued two infringements, one of his exclusive right to make copies; the other of his right to distribute copies to the public. The court held that his claim regarding making copies was untimely as he had notice of infringement no later than February 20, 2008. The court affirmed the dismissal of this claim but reversed dismissal of his right to distribute claim. Depositing the work in the library was not a distribution of the work. That did not occur until it was entered into the library’s catalog information system, at which time the public could access it.

The court rejected the appellees’ fair use argument and remanded to the district court to address their individual liability for infringement.

Tenth Circuit: Unpublished Opinions, 12/30/13

On Monday, December 30, 2013, the Tenth Circuit Court of Appeals issued no published opinions and two unpublished opinions.

Eckardt v. Jones

Chappell v. Monday

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.